Brussels, 13/06/2014 (Agence Europe) - Refusal to grant a student visa to a non-European passport-holder is not allowed on the grounds of bad exam results or lack of motivation, but solely under the criteria laid down in EU Directive 2004/114/EC or if fraudulent use of the directive is demonstrated. This is the view of European Court of Justice Advocate General Mengozzi in conclusions published on Thursday 12 June on case C-491/13 lodged by Ben Alaya.
EU Directive 2004/114/EC on entry conditions for non-European passport-holders for study purposes says that applications must have been lodged in advance with a higher education institute in the EU and applicants must prove that they have enough money to pay their daily living costs and return travel back to their home country after their studies, and they must also prove that they have sufficient command of the language of the course they wish to follow.
Ben Ayala is a Tunisian passport-holder born in Germany who attended school in Tunisia from the age of 6 to 18, until passing the baccalauréat school-leaving qualification. He was accepted for computer studies at a university in Tunisia and also to study maths at Dortmund University, but the German authorities refused to grant him a student visa because they felt he was not properly motivated because he had not achieved sufficiently high marks and there were doubts that he would be able to learn enough German in the time remaining before he was due to start his studies.
The German court dealing with the case asked the European Court of Justice whether the German court had sufficient discretionary powers to refuse to grant a student visa on these grounds.
Mengozzi says in his conclusions that member states cannot add further admission criteria to the detailed criteria laid down in Directive 2004/114/EC, and therefore discretionary powers do not apply. The advocate general points out that the directive says that a visa can be refused if a student is a threat to public order, health or public security or in order to prevent the abusive being abused or used fraudulently. Such motives were not mentioned by the German authorities. Mengozzi adds that low marks at school cannot be used as a justification for rejecting a request for a student visa. (MD)